Habeas Corpus

I've been pretty busy the last few days working on a legal memorandum. I didn't have time to post about this when it happened, but its pretty significant.

Last Friday, federal judge Richard Leon ordered the immediate release of five Guantanamo Bay detainees. He reviewed the cases pursuant to a Habeas Corpus petition and found that the government had failed to present any credible evidence justifying their detention as "enemy combatants," even under the government's own definition of "enemy combatant." Judge Leon is a 2002 appointee of George W. Bush and a long time Republican operative. If there was any evidence to be relied upon, he surely would have relied on it. And yet our government repeatedly insisted that they knew these men were terrorists or aspiring terrorists.

Judge Leon was also the judge that initially ruled that these detainees lacked standing to file a Habeas petition, based on the Military Commissions Act passed by Congress in 2006. Judge Leon’s ruling was overturned earlier this year when the U.S. Supreme Court, by a bare 5-4 majority, overturned Section 7 of the Military Commissions Act that stripped the Guantanamo detainees of Habeas protection. The Boumediene decision can be read here for anyone who is interested. The syllabus is only the first eight pages and it will give you the basic facts and the Court's reasoning.

These five men were imprisoned at the Guantanamo facility for seven years without any charges being filed against them. Had it had been up to our 2006 congressional majorities (including a sizable number of Democrats) and Supreme Court Justices Roberts, Alito, Scalia, and Thomas, their cases could never have been reviewed by an independent federal court. They would have remained in Guantanamo indefinitely, at the will and whim of the President, without any legal recourse to challenge their detentions. Just like anyone else that the president, includng any future president, decided was an "enemy combatant."

And now it turns out that the evidence against these men was so thin that a political ally turned federal judge felt compelled to order the men released “forthwith” and to urge the government, in the name of fairness and humanity, not to appeal his decision and thereby delay the detainees' release. Wow!

Thank God for Justice Kennedy. He and the other four “liberal” justices saved the country from tyranny. Actually, they did more than that; they saved the country. They prevented us from changing from a political entity in which every imprisoned person has a constitutional right to challenge the legality of their detention before an independent and impartial tribunal, into a political entity in which the ultimate tyrannical power (the power to imprison) is invested in the executive, checked only by political concerns and the limits of secrecy. A country of the latter sort might still be called the United States of America. But it would not be the same country. It would not be a country that I could take pride in.

And thank God for Obama beating John McCain, who called Boumediene the worst decision in the history of the Supreme Court. I hope the country comes to understand that the Republican crazies and Democratic cowards of 2006-2008 almost sent us over the edge. We definitely need to build greater institutional firewalls to protect the constitution in times of panic and fanaticism.

Joe H.